Lord Renton: Perhaps the right reverend Prelate would be so good as to consider, in the light of what he said, the antagonism which alas has gone on for so long in Northern Ireland between Catholics and Protestants. We have laws which protect all of them. The religious motive is not something that the courts are obliged to consider. They have to consider the criminal act which comes from either side. Should we be selective about motive in the case that the right reverend Prelate mentioned?

4.15 p.m.

Lord Howie of Troon: I am in an awful dilemma in the sense that I agree with nearly everyone who has spoken, including my noble and learned friend on the Front Bench and especially my noble friend Lord Desai. What bothers me is that over the years a creeping lack of distinction has arisen between racism and nationalism. That is where I agree with the noble Lord, Lord Carlisle.

I do not object to being called a Scotsman. I might object to being punched on the nose because I am a Scotsman but that is because I was punched on the nose rather than the reason. There is a real distinction between the sort of thing referred to by my noble friend Lord Desai, which is straightforward racism--which obviously I totally condemn and he will understand me in that regard--and nationalism.

Let me say something to which I hope nobody will listen. We can carry the idea of nationalism to the extent that English football supporters--not Scottish ones--go abroad and call Frenchmen "frogs". We can understand that sort of thing and some of their ill behaviour, but we would not condemn it. However, when we come to our own island and worry about calling Welshmen "Welshmen"--which they certainly are--and even Englishmen "Englishmen" (though it is harder to believe that they would be proud of that, but there it is) it simply confuses the issue.

I am hesitant about all this. On the whole I am inclined--it is not my normal inclination--to give the Government the benefit of the doubt. That worries me a bit. However, we can possibly give the Government the benefit of the doubt. They are wrong in any proper appreciation of the difference between race and nation; there is no doubt at all about that. But if it helps the Government in their attack on racism, which I wholly support, I will support them in their defending me, a

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Scotsman, from having my nose broken by some irate Englishman for some reason which I fail to understand. However, I am a little wary of it.

Baroness Hilton of Eggardon: I support the right reverend Prelate in everything he said from the very different perspective of having been a police officer in the East End of London for many years. I believe there are two reasons why the amendment should not proceed. The first is that the issue of race is different from that between Scotsmen and Englishmen in that it is a question of inequality. It is a question of the bully adopting the usual tactics that bullies take in relation to the weak. We have seen dreadful examples of bullying in schools and other places. That is what happens when a majority of a specific ethnic origin in a country choose to express some of their worst feelings by bullying and displays of aggression against minority members of the community, especially those who are distinguished by skin colour which makes them an obvious target. It is an extremely important point to make that the position between the English and the Scots is a matter of equality between two nationalities, races, people of ethnic origin or whatever. But we are talking here about a situation where a powerful ethnic majority uses opportunities to bully those in minority groups.

The other point, which I think is extremely important, is that this is symbolic. It is a symbolic message to our nation as a whole that we will not tolerate racially motivated aggression, assaults or bullying. Therefore, I do not believe that the amendment should succeed.

Lord Mackay of Drumadoon: Before the noble and learned Lord replies, perhaps I may ask a question. If a Scotsman was included in a racial group in terms of Clause 22(2), under which part of the definition would he fall? Would it be "race", "nationality" or "ethnic or national origins"?

Lord Falconer of Thoroton: A case has shown that the Scots would fall under "national".

The second part of the debate arose because of the intervention of the noble Lord, Lord Renton, at which I was extremely surprised. As he knows, the criminal law repeatedly intervenes to protect particular vulnerable groups; for example, people under 16, children, and people suffering from some sort of mental disability. To say that the amendment should be supported because there are offences that apply to everyone, such as offences against the person, seems to me, with respect to the noble Lord, to be a complete misunderstanding of the purpose of the clause, which is to come to the aid of people who might be vulnerable in our society. That approach chimes in with the view on the ground of the right reverend Prelate and the view on the ground of my noble friend Lady Hilton.

So, if I may say this with the greatest respect, the principled attack by the noble Lord, Lord Renton, was wrong. Moreover, it always comes back to this question. Are we right to be doing something to stamp out racial discrimination when there may be other sorts of discrimination that are just as bad? I think that other sorts of discrimination are just as bad, but I certainly do

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not think that is a reason for not doing anything about racial discrimination. I ask the noble Lord, Lord Monson, to withdraw his amendment.

Lord Monson: I am grateful to everyone who has contributed to the debate. I am grateful in particular to the noble and learned Lord the Minister, who was very helpful, to the noble Lord, Lord Carlisle, and to the noble Lord, Lord Renton.

First, perhaps I may pick up the valuable points made by the noble Lord, Lord Meston. He wants to standardise the wording between the English and Scottish clauses. I agree with him but I think it should be standardised on a Scottish basis. If the words "malice and ill will" were to be substituted for "hostility", it would make the subsection much more acceptable. "Hostility" can be extremely minor and it can also be transient. I spoke earlier about the English, the Israelis and the Sinhalese who might be hostile towards the Irish, the Arabs and Tamils as a result of a bomb explosion. Hostility can be a passing thing. "Malice and ill will" are fairly strong. You have to be fairly nasty to express malice and ill will, so that would be more acceptable than hostility, which, as I say, can be very trivial. Whether there is any chance of such a standardisation, I do not know. It may be that Scottish law cannot be translated quite so easily.

The noble and learned Lord the Minister, the noble Lord, Lord Desai, the right reverend Prelate and others talked about protecting people. The question is whether the provision will do so. Will it be effective; will it be neutral; or might it be positively counterproductive, as I suggested it might? I still think it might if it arouses the wrath and resentment of the majority of the population. As I suggested, juries might be reluctant to convict if they thought the law was unfairly biased against what I suppose we still call the indigenous population.

Obviously, the Government think it will be effective. That is interesting because, as I said, it seems to go against everything Labour used to say up until about 1995. Old Labour thought that long sentences were of no use. It would appear--this is just a matter of interest to me and I am not trying to score a party political point--that new Labour now would tend to agree more with the Conservatives in their thinking that long sentences are indeed a good idea from the point of view of preventing crime. It will be interesting to study everything that has been said and then go into this matter a little more. However, for the time being at any rate, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment 157A not moved.]

Clause 22 agreed to.

Clause 23 [Racially-aggravated assaults]:

Lord Henley moved Amendment No. 158:

Page 18, line 35, after ("harm)") insert--
("(bb) an offence under section 18 of that Act (shooting or attempting to shoot or wounding with intent to cause grievous bodily harm);").

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 159, 161, 163 and 164. I am grateful for what we have heard so far

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from the noble and learned Lord the Minister but I have to say that the jury is out as to how well these clauses will achieve what both he and no doubt all other noble Lords wish to achieve.

These five amendments divide naturally into a pair and a trio. They are designed to tease out some of the Government's intentions and to explore what I consider to be some of the inconsistencies in Clauses 23 and 24. Amendments Nos. 158 and 159 are designed to add the most serious offence in the Offences Against the Person Act to those in the Bill. As the noble and learned Lord will be aware, in Clause 21(3)(a), (b), and (c) there are mentioned, first, Section 20 offences--malicious wounding or grievous bodily harm--secondly, Section 47 offences--actual bodily harm--and, thirdly, common assault. In the second part of Clause 23 we see the punishments for those offences. For the offences in Clause 23(1)(a) and (b), we see in Clause 23(2)(b) that, on conviction on indictment, a person may be liable to a prison term not exceeding seven years or to a fine, or to both. That is a maximum of seven years, up from five years, which would be the maximum for those offences if they were not racially aggravated. Similarly, we see that for common assault the penalty is increased to two years from--I could not get hold of a copy of Archbold yesterday afternoon as everyone else seemed to be examining it--a maximum of one year. If I am wrong, no doubt the noble and learned Lord will correct me in due course.

What I am seeking to add is the offence under Section 18 of the Offences Against the Person Act; namely,

"shooting or attempting to shoot or wounding with intent to cause grievous bodily harm".

That is a more serious offence than that under Section 20 and one with a maximum punishment of life imprisonment. I suspect that when the noble and learned Lord comes to reply he will argue that my amendment is unnecessary, that the offence already carries a maximum of life imprisonment and that therefore one cannot go beyond that. I see the noble and learned Lord nodding his head. Therefore, I take it that he will be pursuing that line.

However, I believe that misses the point in that, first, life is only the maximum. It is not the same as in the case of murder where there is a statutory punishment of life imprisonment, and therefore it would not be advisable to add that to the Bill. But if Parliament, through the Bill, wants to argue, as I think it quite rightly does, that racially aggravated offences should be treated very seriously, and if it therefore wishes to include the lesser offences and not the more serious offence, such as offences under Section 18, it would seem to imply that the courts could not take racial aggravation into account despite what Sections 68 and 79 say later on.

If that is not the case and the courts can take racial aggravation into account as both the Attorney-General and the Lord Chief Justice have argued--I quoted them at Second Reading--would it not also be the case with the lesser offences? In other words, we are back to where I was before. These clauses are not necessary in terms of increasing the offence. As the noble and

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learned Lord put it, I can accept that they are necessary if one wants to create an offence, but they are not necessary in terms of increasing the maximum offences. The courts already have that power.

There is a second point which I wish to make on Amendments Nos. 158 and 159 in relation to the direction which a judge would have to give to the jury on the occasions when these particular offences were used. For an individual charged under Section 18, the prosecution would no doubt also charge the lesser offence under Section 20 or Section 47, which is actual bodily harm. That would sweep up all matters in case the jury were not prepared to convict on the more serious offence.

Let us say that the individual is charged under Section 18 and Section 47 and that there is racial aggravation, which is also applicable to the case. Therefore, the individual is charged under Section 47 and this clause with racial aggravation having come into the case. When the judge comes to direct the jury, does he have to say, "You, the jury, cannot take racial aggravation into account when dealing with Section 18, but if you decide that the case was not as serious as all that, and it was only actual bodily harm (Section 47), in that case you can take racial aggravation into account." That may be a complete misunderstanding of how these clauses are to work. I may not have quite grasped the Government's intention. But it seems to me to be something of a nonsense. No doubt others who have experience of directing juries will be able to add something to the debate. This situation is a recipe for disaster or at least for considerable confusion when the judge directs the jury. I shall be grateful if the noble Lord will address those points when he responds.

The second trio of amendments, Amendments Nos. 161, 163 and 164, are relatively simple. They add to Clause 24 further offences under the Public Order Act. The current offences covered in the Bill under the Public Order Act include,

"fear or provocation of violence",

which is Section 4 of that Act;

"intentional harassment, alarm or distress",

under Section 4A of the Act or "harassment, alarm or distress" under Section 5.

All that I have sought to add in the amendments are the violent offences under the Public Order Act. If one is dealing with violence there is no reason whatever why they should not be included in Clause 24 along with what one might describe as the non-violent offences under the Public Order Act. For example, I cite a race riot. No doubt the Government would wish to take that more seriously than a riot motivated by perhaps the arguments of the noble Lord, Lord Carlisle, with the noble Lord, Lord Williams, as regards what happens at a rugby match.

I hope that I have explained adequately what is behind these two groups of amendments. I shall be grateful for an explanation from the Government as to why I am wrong and why it is not necessary to make these additions to the Act. I beg to move.